Grillo barristers were right to give Nigella a grilling

Nigella Lawson’s suggestion that she was the real victim in the trial of the Grillo sisters is, unlike most of her carefully crafted recipes, a little hard to swallow. Her central allegation is that having – somewhat reluctantly – performed her civic duty of giving evidence in court, allegations that she was a heavy cocaine user were made against her which were irrelevant, and which the court process did not allow her to rebut:

“I did my civic duty, only to be maliciously vilified without the right to respond. I can only hope that my experience will highlight the need for a reform that will give witnesses some rights to rebut false claims made against them.”

Does she have a point?

One needs to be alert to the danger of complacently assuming that the law one has practised for years is faultless. It is not. But problems such as those identified by Miss Lawson are neither new nor easily solved. Over hundreds of years, difficult case by difficult case, the common law has developed its own solutions. There is always going to be a tension between doing justice to individual defendants, to “the people” (as represented by the Crown) and to witnesses called to give evidence. Until someone can show that a particular reform would amount to a demonstrable improvement we should be wary of those advocating them in the abstract. Those who think otherwise should first read David Allen Green’s magnificent Something Must Be Done Act 2014, coincidentally published just hours before Miss Lawson called for “something to be done”.

Most participants, whether witnesses or defendants, find that enduring a Crown Court trial is amongst the more miserable experiences that life has to offer. That does not, in itself, mean that there is anything wrong with the process. In Miss Lawson’s case there was a stark issue to be decided: either the Grillos had stolen her money, or she implicitly allowed them to run up huge bills in return for their silence over her cocaine habit. Someone was lying, and if the Grillos were to be condemned and slung into gaol the jury needed to be sure that it was them rather than Nigella. Thrashing it out was always going to be profoundly unpleasant. And of course the verdict has actually done no more than raise a doubt over the Grillos guilt. It cannot and should not be seen as a finding that Nigella was lying, because that was not the issue that the jury decided.

Her central complaint is that the court system gave her no chance to rebut the allegations against her. She has a bit of a point, but less than might first appear. Although the extent of her cocaine taking was an important part of the trial it was not the ultimate issue that the jury had to decide. Guilty verdicts would no more have settled the question of whether she was a heavy cocaine user than the acquittal has done. There was in fact no verdict available that would have amounted to a clear rebuttal because the jury were concerned with a different question. It would have been at least theoretically possible for the jury to have found the sisters guilty while still believing that Nigella was an unreformed coke-head, just as it is perfectly possible that they acquitted whilst thinking that she is nothing of the sort.

So although Miss Lawson is right that the court did not give her the opportunity conclusively to rebut the allegations against her, she is wrong to imply that it should have done so. The difficulty is that during a criminal trial all sorts of issues invariably arise which may have a bearing on the verdict but which the trial process cannot conclusively resolve. And quite right too: it is difficult enough to decide on the defendant’s guilt or innocence without complicating the process by requiring the jury to give a verdict on the various imputations on witnesses that the trial may throw up.

Moreover, Miss Lawson was by no means as defenceless as she claims. If a defendant in a criminal trial is going to make allegations against a prosecution witness the rules demand three things.

First, the defence must give written notice of the nature of the defence in a written statement. That was done in this case (albeit the cocaine allegations were raised later than would normally have been the case) and the Crown had the opportunity to find evidence that rebutted it. In truth it is difficult to imagine what other evidence could have proved that Miss Lawson was merely a “light” user other than her own word and perhaps that of Mr Saatchi.

Secondly, the defence must satisfy the judge that the allegations are relevant to the issue of the defendant’s guilt. In this case the judge ruled that they were.

Thirdly, the defence advocates must put the allegations to the witness in question. Counsel for each sister quite properly put their case to the domestic goddess, giving her a chance if not to rebut, at least to deny them. It was an opportunity she accepted (although she would have been within her rights to exercise her privilege against self-incrimination by refusing to answer any questions about her cocaine use). So it is wrong to say she did not have the right to respond.

Furthermore, it is not as if the judge simply sat back and enjoyed the show. At one point during her cross-examination Miss Lawson was asked about having received a Mother’s Day card with a spliff taped to it. Judge Johnson curtly interrupted, saying: “that’s enough, you have exhausted my patience,” telling her not to answer the question.

Many of the watching journalists seemed to think that she had in fact delivered a master-class in giving evidence, citing for example (and perhaps unfairly) her immaculate dress sense and her icy response when one of the barristers mistakenly addressed her as “Mrs Saatchi”. Grim though she no doubt found the whole business, not only did she exercise her right to respond she did so with skill and panache. Her problem is that despite that, the jury did not altogether buy it.

It is hard to know exactly what “reform” of the criminal justice system Miss Lawson would like to institute. She does not say.

So what are the alternatives?

• A barrister in court to speak up for a witness’s interests, perhaps?

This is a serious suggestion made by no less an authority than Geoffery Robertson QC but even that does not stop it being a complete and utter dud.

For a start: who would pay for all these extra lawyers? Certainly not Legal Aid. So whilst the those who could afford them would no doubt be happy to brief legal superstars, like Mr Robertson, those without money would have to do without.

And would it be available to all witnesses whose characters were attacked? In many cases that would mean, in effect, double the representation for the prosecution. that does not seem entirely fair.

And another probllem: in this case, Mr Saatchi found his character under attack as well as Miss Lawson. She accused him of “intimate terrorism.” That was surely just as serious an attack on his character as the cocaine allegations were on Miss Lawson’s. Under Mr Robertson’s proposal why should he not have his own heavyweight QC to defend his character, both from the Grillos and from his ex-wife?

In practice, of course, (and certainly in this case) very often the best means of defending a witness’s reputation would be to attack that of other witnesses. There is every reason to think that a silk for Mr Saatchi would have enthusiastically tried to dig out the dirt on Miss Lawson, whilst one instructed by Miss Lawson might have been equally conscientious in throwing yet more mud at Mr Saatchi. It seems unlikely that this Schlammfest would be a very edifying specatacle.

Would defence witnesses who were attacked also have a right to their own barristers? He does not say, but presumably, under Mr Robertson’s proposal they would.

Already the number of potential barristers has started to mushroom alarmingly. And if anyone thinks that having a court-room full of top barristers metaphorically throwing mud at each other’s clients will lead to more reliable verdicts, then I would, well, disagree.

• A right for the attacked witness to call evidence in rebuttal?

But then the defendant could call evidence to rebut the rebuttal, and pretty soon the jury would be hearing a dispute that had precious little to do with the defendant’s guilt or innocence. And would the jury then be expected to adjudicate on the witness’s guilt of whatever disreputable conduct he or she was accused of, as well as on the guilt of the defendant?

And what if the characters of lots of witnesses are attacked? In this case Mr Saatchi cannot have enjoyed the revelation that the Grillo sisters were sent round London bookshops to buy up unsold copies of his tedious scribblings on contemporary art. Should he have been able to rebut that wounding allegation?

The more one thinks about it the more a witness’s right to rebut would seem a recipe for confusion and injustice to everyone involved.

If the prosecution are ambushed by an unforeseeable defence it already has the right to call evidence in rebuttal. It is a right that is very rarely exercised these days, not least because the prosecution are very rarely ambushed.

• Conduct the trial in secrecy, or without naming the Lawsons?

Absurd.

• Admit evidence from lie detectors?

They don’t work.

• Move to an inquisitorial system of justice such as that “enjoyed” under the Napoleonic Code?
• We would need to have a much better argument than Miss Lawson’s public humiliation to take that momentous step.

Cross-examination is often a brutal and imperfect weapon. It is in some circumstances quite as capable of concealing the truth as of revealing it. But for an innocent defendant it remains the only real weapon that can be used to demonstrate the falsity of the indictment. Anyone who has worked in the courts for more than a year or two will be able to recall occasions when an apparently powerful prosecution case has collapsed under the onslaught of a savage cross-examination. It can be a process that is horrible to behold: unless you happen to be a defendant accused of something that you did not do. Given the huge imbalance in resources between the Crown and the defence, the right to cross-examine, and to do so as powerfully as possible, is a precious safeguard of our freedom, a right that is of even greater importance than Miss Lawson’s reputation.

It may well be that in the days to come the Grillos will be tempted to make money from selling lurid accounts of life in the Lawson household. If so, they may find that any public sympathy they now have quickly evaporates. It is one thing to reveal Nigella’s secret weaknesses in a desparate attempt to defend their liberty. It would be quite another to do so in order to make money. If they did that they would be breaching her confidentiality in an appalling and probably defamatory way.

The only possible consolation for Miss Lawson would be that a libel case would give her the opportunity that the criminal trial denied her: to ask a jury to decide that the Grillos’ more extreme allegations are simply not true.